“Country of Origin” in the Refugee Context

16th Jun 2015 Comments Off on “Country of Origin” in the Refugee Context

Section 96 of the Immigration and Refugee Protection Act (“IRPA“) provides that:

Convention refugee

96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or

(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.

There has recently been disagreement within the Federal Court over what the term “countries of nationality” encompasses, and on May 11, 2015, Justice Mosely certified the following question:

Do the expressions “countries of nationality” and “country of nationality” in Section 96 of the Immigration and Refugee Protection Act include a country where the claimant is a citizen but where he may face impediments in exercising the rights and privileges which attach to citizenship, such as the right to obtain a passport?

The Federal Court of Appeal has previously addressed the issue of the definition of “countries of nationality” in the IRPA s. 96 context when in Williams v. Canada (“Williams”) it answered the following certified question in the affirmative:

Does the expression “countries of nationality” of section 96 of the Immigration and Refugee Protection Act include a country where the claimant can obtain citizenship if, in order to obtain it, he must first renounce the citizenship of another country and he is not prepared to do so?

In Williams the Federal Court of Appeal ruled that whether the citizenship of another country was obtained at birth,

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A37 – Inadmissibility for Organized Crime

15th Jun 2015 Comments Off on A37 – Inadmissibility for Organized Crime

Last updated on April 27th, 2019

Section 37of the Immigration and Refugee Protection Act (the “IRPA“) provides that a permanent resident or foreign national is inadmissible to Canada for organized criminality.  It states:

37. (1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for

(a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern; or

(b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or laundering of money or other proceeds of crime.

Application

(2) Paragraph (1)(a) does not lead to a determination of inadmissibility by reason only of the fact that the permanent resident or foreign national entered Canada with the assistance of a person who is involved in organized criminal activity.

Immigration, Refugees and Citizenship Canada (“IRCC“) in 2010 created a useful internal document summarizing the jurisprudence on the interpretation of this section, and I have reproduced it below.

Please note that what I have reproduced below should not be viewed as legal advice.  I obtained a copy of this internal Citizenship and Immigration Canada training guide through an Access to Information Act request (the “ATI”).  The reproduction of question and answer has not occurred with the affiliation of the Government of Canada,

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Bill C-690: The Live-in Caregiver Access, Respect and Employment Act

11th Jun 2015 Comments Off on Bill C-690: The Live-in Caregiver Access, Respect and Employment Act

On June 11, 2015, John McCallum, the Member of Parliament for Markham — Unionville, and a member of the Liberal caucus, introduced Bill C-690, An Act to amend the Immigration and Refugee Protection Act (live-in caregiver). Its short form is the Live-in Caregiver Access, Respect and Employment Act.  Considering how close Mr. McCallum introduced Bill C-690 prior to the upcoming federal election, Bill C-690’s provisions will presumably form part of the Liberal Party of Canada‘s election platform.

Bill C-690 is short, and its substantive portion would introduce a new s. 32(d.11) into the Immigration and Refugee Protection Act (“IRPA”) so that s. 32 of IRPA would read:

Regulations

32. The regulations may provide for any matter relating to the application of sections 27 to 31, may define, for the purposes of this Act, the terms used in those sections, and may include provisions respecting

(d) the conditions that must or may be imposed, varied or cancelled, individually or by class, on permanent residents and foreign nationals, including conditions respecting work or study;

(d.1) the conditions that must or may be imposed, individually or by class, on individuals and entities — including employers and educational institutions — in respect of permanent residents and foreign nationals, or that must or may be varied or cancelled;

(d.11) for the purposes of paragraph (d.1), the restriction of the right to enter into an employment contract with a foreign national who is a member of the live-in caregiver class to entities authorized to do so by permit, and the issuance, renewal and revocation of such permits;

The summary for Bill C-690 states:

This enactment amends the Immigration and Refugee Protection Act to provide for the making of regulations requiring that the employer of a foreign national who is a member of the live-in caregiver class be an entity holding a permit authorizing it to enter into an employment contract with such a foreign national.

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Revocation and Statelessness after Budlakoti

9th Jun 2015 Comments Off on Revocation and Statelessness after Budlakoti

Some of the more controversial sections of Bill C-24, The Strengthening Canadian Citizenship Act (“Bill C-24”), are its revocation provisions.

Bill C-24 will create a new s. 10(2) of the Citizenship Act which will state that:

Revocation by Minister — convictions relating to national security

(2) The Minister may revoke a person’s citizenship if the person, before or after the coming into force of this subsection and while the person was a citizen,(a) was convicted under section 47 of the Criminal Code of treason and sentenced to imprisonment for life or was convicted of high treason under that section;

(b) was convicted of a terrorism offence as defined in section 2 of the Criminal Code — or an offence outside Canada that, if committed in Canada, would constitute a terrorism offence as defined in that section — and sentenced to at least five years of imprisonment;

(c) was convicted of an offence under any of sections 73 to 76 of the National Defence Act and sentenced to imprisonment for life because the person acted traitorously;

(d) was convicted of an offence under section 78 of the National Defence Act and sentenced to imprisonment for life;

(e) was convicted of an offence under section 130 of the National Defence Act in respect of an act or omission that is punishable under section 47 of theCriminal Code and sentenced to imprisonment for life;

(f) was convicted under the National Defence Act of a terrorism offence as defined in subsection 2(1) of that Act and sentenced to at least five years of imprisonment;

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A34 – Inadmissibility for Security Reasons

4th Jun 2015 Comments Off on A34 – Inadmissibility for Security Reasons

Section 34 of the Immigration and Refugee Protection Act provides that a permanent resident or foreign national is inadmissible to Canada for security reasons.  It states:

Security

34. (1) A permanent resident or a foreign national is inadmissible on security grounds for

(a) engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests;

(b) engaging in or instigating the subversion by force of any government;

(b.1) engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada;

(c) engaging in terrorism;

(d) being a danger to the security of Canada;

(e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or

(f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b), (b.1) or (c).

(2) [Repealed, 2013, c. 16, s. 13]

A Citizenship and Immigration Canada has produced a useful internal document summarizing the jurisprudence (up to about 2010) on the interpretation of this section, and I have reproduced it below.  More recent jurisprudence can be found throughout my blog, but the CIC document is a very useful summary.

Please note that what I have reproduced below should not be viewed as legal advice.  I obtained a copy of this internal Citizenship and Immigration Canada training guide through an Access to Information Act request (the “ATI”).  The reproduction of question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.  

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Bill S-7 – The Zero Tolerance for barbaric Cultural Practices Act

2nd Jun 2015 Comments Off on Bill S-7 – The Zero Tolerance for barbaric Cultural Practices Act

On November 5, 2014, the Leader of the Government in the Senate introduced Bill S-7, An Act to amend the Immigration and Refugee Protection Act, the Civil Marriage Act and the Criminal Code and to make consequential amendments to other Acts, otherwise known as the Zero Tolerance for Barbaric Cultural Practices Act (“Bill S-7“).

Bill S-7 has mainly received media attention because of its arguably inflammatory title.  The actual significant impacts for prospective immigrants and practitioners are:

Current
Proposed

Practising polygamy does not result in a foreign national or permanent resident being inadmissible to Canada.
A permanent resident or a foreign national is inadmissible on grounds of practising polygamy if they are or will be practising polygamy with a person who is or will be physically present in Canada at the same time as the permanent resident or foreign national.

Marriage requires the free and enlightened consent of two persons to be the spouse of each other.

No person who is under the age of 16 years may contract marriage.

There will be a new offence that everyone who celebrates, aids or participates in a marriage rite or ceremony knowing that one of the persons being married is marrying against their will is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

There will be a new offence that everyone who celebrates, aids or participates in a marriage rite or ceremony knowing that one of the persons being married is under the age of 16 years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

A judge may order a person to enter into a recognizance with conditions to keep the peace and be of good behaviour for the purpose of preventing the person from committing an offence relating to the marriage of a person against their will or the marriage of a person under the age of 16 years or relating to the removal of a child from Canada with the intention of committing an act that,  » Read more about: Bill S-7 – The Zero Tolerance for barbaric Cultural Practices Act  »

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